Petition for Review of a Decision of the Board of Zoning Adjustment (BZA-16507)

Before Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge

Argued April 4, 2001

Watergate West, Inc. ("Watergate"), seeks review of an order in which the Board of Zoning Adjustment ("BZA") affirmed the decision of the Zoning Administrator to approve a certificate of occupancy for George Washington University ("GWU") to use a former hotel as a dormitory for some of its students. The site of the building is an R-5-E ("high density") residential zoning district. See 11 DCMR § 105.1 (a)(5)(E) (1995). *fn1 The Zoning Administrator held that GWU was entitled as a matter of right to use the building as a dormitory and that it therefore was not required, contrary to Watergate's assertions, to obtain a special exception for that purpose. The BZA affirmed that ruling after a hearing. Watergate filed a timely petition for review in this court.

Watergate owns a cooperative apartment building across the street from the building at issue. Before this court it contends, as it did before the Zoning Administrator and the BZA, that university uses are not permitted in residential zones as a matter of right. Rather, Watergate maintains, a university is required, under 11 DCMR § 210, to obtain a special exception to use any building, and must demonstrate to the BZA that its proposed use is not likely to cause offense to neighboring property because of noise, traffic, number of students, or other objectionable conditions. Further, Watergate argues that the Zoning Administrator and the BZA failed to give effect to the District of Columbia Comprehensive Plan ("the Plan"), which, in Watergate's view, prohibits GWU from using the building as a dormitory. We affirm.

I.

In May 1999 GWU purchased the former Howard Johnson Hotel at 2601 Virginia Avenue, N.W., with plans to convert it into a dormitory for 388 students. A few days later, GWU applied to the Department of Consumer and Regulatory Affairs for a certificate of occupancy.

During the processing of this application, Advisory Neighborhood Commission 2-A ("ANC 2-A") wrote a letter to the Acting Zoning Administrator, Armando Lourenco, asking whether GWU needed to obtain a special exception before converting the hotel into a dormitory. *fn2 The Administrator replied that a dormitory was a matter-of-right use in the R-5-E district where the building was located. The BZA, in turn, informed ANC 2-A of its right to appeal the Zoning Administrator's determination. The certificate of occupancy was issued on July 28, 1999. Both Watergate and ANC 2-A appealed to the BZA on August 2.

At a hearing before the BZA a few months later, Mr. Lourenco testified about the basis for his decision. He said:

There are two issues, I believe, that the Board needs to consider here. The first one is whether or not the decision of considering this site as a site where, as a matter of right, you can establish that the dormitory was correct. And that of course is intertwined with the issue of the campus plan. And the second issue is whether or not that decision is consistent, as the law requires, with the comprehensive plan.

And I believe the answer to those two questions can only be yes.

As to the first issue, Mr. Lourenco explained that dormitories are permitted as a matter of right in an R-5-E district, and that for this reason GWU's application for a certificate of occupancy met the zoning requirements. He further testified that 11 DCMR § 210, which deals generally with "Colleges and Universities," did not apply in this case because the building site was located off campus. Consequently, GWU's application for a certificate of occupancy was reviewed in the same manner as any other request by a private institution.

Mr. Lourenco also made clear that he did consider the Comprehensive Plan while processing GWU's application for a certificate of occupancy. *fn3 He explained that the relevant provisions of the Plan sought to prevent GWU from converting existing permanent residential housing into dormitories. However, because the building at issue was a former hotel, i.e., was not and had never been permanent residential housing, these provisions did not apply to GWU's application. To the contrary, Mr. Lourenco reasoned, GWU's use of the building as a dormitory would help to relieve pressure on other housing stock in the area, and thus it furthered the stated goals of the Plan. *fn4

ANC 2-A submitted a written report to the BZA which challenged the Administrator's findings and recommended that Watergate's appeal be granted. Watergate maintained that GWU was not entitled as a matter of right to convert the former hotel into a dormitory. Further, it asserted that Mr. Lourenco had failed to apply the Comprehensive Plan, ...

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